To Be a Fly on the Wall

On Friday, January 9, the United States Supreme Court will discuss whether to review of one or more of the five marriage equality cases now before it. We’d love to be a fly on the wall at the Court’s private conference, but we, like millions of other LGBT Americans and their friends and families, will have to wait for the Court’s public announcement, which could come later that day, the following Monday, or even later in January.

Nearly all legal observers thought the Supreme Court would take a marriage equality case last October, but the Court instead declined to review decisions in favor of the freedom to marry from the 4th, 7th, and 10th Federal Circuits. Marriages began immediately in Virginia, Indiana, Wisconsin, Oklahoma, and Utah. Other states in these federal circuits, such as Colorado, North Carolina, and West Virginia soon thereafter followed suit. At the same time, the 9th Circuit Federal Court ruled in our favor, and states such as Nevada, Idaho, and Arizona gained equality. Today, 36 states and the District of Columbia have marriage equality.

But a very conservative federal trial judge in Louisiana and the 6th Circuit federal appeals court (covering Michigan, Ohio, Kentucky, and Tennessee) failed to follow the otherwise unanimous consensus of lower federal courts, which had sided with equality since the Supreme Court struck down DOMA in 2013. The 6th Circuit and the Louisiana federal judge upheld the statewide marriage bans before them.

Speculation is high that the Supreme Court will grant review of the 6th Circuit (or Louisiana) decision. Last summer, Justice Ginsberg, stated that “some urgency” would exist for the Court to take the case if the 6th Circuit ruled against equality. Conflicting decisions from federal circuit courts present a classic reason for the Supreme Court to review a case. Justices Thomas and Scalia indicated late last fall that they had wanted the Court to take one of the cases in October. But the Supreme Court could also decline review of the 6th Circuit and Louisiana cases and continue to allow the various federal appellate courts to reach their own decisions regarding state marriage bans.

We urge the Supreme Court to grant review of one or more of the cases before it and establish marriage equality nationwide and heightened constitutional protection for LGBT people more broadly. If it doesn’t, LGBT people will continue to be excluded from marriage in Michigan, Ohio, Kentucky and Tennessee for the indefinite future. Married LGBT couples will remain vulnerable if they move or travel to a state without equality. LGBTQ couples who married in states with equality, but live in states without it, will be deprived of important federal rights and protections. And LGBT Americans will continue to live with uncertainty as to whether the Supreme Court and other federal courts will protect us from governmental discrimination in all aspects of our lives.

As we await the Supreme Court’s decision, action will continue apace in the federal circuits. Marriages began in Florida earlier this week, and briefing is nearly complete in the 11th Circuit. The 5th Circuit (covering Mississippi, Louisiana, and Texas) will hold oral argument in marriage equality cases on January 9, the same day the Supreme Court will conduct its conference. Decisions will follow in the coming months. The First Circuit is also reviewing an unfavorable ruling from Puerto Rico, and the Eighth Circuit (covering states such as Arkansas, Missouri, Nebraska, and the Dakotas) will be hearing and deciding case(s) as well.

The case for equality is strong if the Court takes a case this January. The Court’s 2013 Windsor decision articulated forcefully the harm that inequality causes LGBT couples and their families. If the Court takes a case this term, oral argument will take place in the spring with a decision very likely in late June -- just in time for Pride. We hope for an equality-filled 2015.

John Lewis and Stuart Gaffney, together for nearly three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. John is the MEUSA Director of Legal & Policy; Stuart is the MEUSA Communications Director.

Marriage Equality USA (MEUSA) was the grassroots movement to win marriage in the United States. With the U.S. Supreme Court victory on June 26, 2015 the work of the organization - though not the larger movement - was achieved and MEUSA ceased formal operations, closing in late 2017. For inquires please contact lovewins@marriageequality.org.